Property Class Notes 2/4/04


More on Charlton


Let’s finish with adverse possession!  What happened in this case?  The Crockers bought two lots in a subdivision.  They cleared some brush off of some adjacent lots (to prevent fires) and tried to establish adverse possession.  They also left some junk on the other lots.  They want to claim that they have acquired these other three lots by adverse possession.  They don’t have color of title.


The Crockers lose!  How come?  The judge thinks they’re liars!  Once you look up “tergiversation”, you sort of know who’s going to win.


So why do the Crockers lose?  They lose because they weren’t adverse.  Well, how come?  What does it mean to be an adverse possessor?  The main issue here is “claim of right”.  But what’s that?


The idea is that it doesn’t matter whether you believe that you’re taking the true owner’s property in order to get adverse possession.  It only matters that you believe that you possess the property in your own rights.  You possess the way an owner would possess.  If you know that what’s you’re doing is adverse possession, you know “more than you need to”.  It’s not fatal to act willfully, but it might cast suspicion on some of the elements of adverse possession, as it does in this case.


What was Crocker really doing?  It seems as though he’s going after a windfall.  It looks like they are trying to “massage” the facts into adverse possession.


The court believes that the Crockers didn’t enter the land in question with the intent to occupy it as an owner.  This is fatal to their adverse possession claim.  The court finds it important to note that Mrs. Crocker admitted that there were sensitive to the other lots being “somebody else’s”.


Note that “adverse” means substantially the same thing as “hostile” or “wrongful”.


The court looks at a number of factors.  The court finds that the original entry was permissive rather than adverse (they called and asked someone, not the true owner, for permission).  The “setback problem” indicates that the Crockers lacked the intention to possess.  Also, in order to file a mechanic’s lien, you must believe that the land you’re asserting the lien against belongs to somebody else.


The finder of fact in the trial court (the trial judge in this case) is in the best position to determine whether the witnesses are credible.


Braunstein thinks this is a closer case than it may appear.


He says that all the requirements of adverse possession boil down to acting like the true owner of the property.


Note that the mechanic’s lien was filed after the prescriptive period ran.


Claim of right


This is very confusing.  In some cases, all it means is that you’re claiming unequivocally that you have the right to possession in your own right.  In other words, there is no requirement of good faith.  But sometimes the courts go further than that and require that subjectively you must believe that you have a right to be where you are.  The adverse possessor, in other words, must show that they really believed it was their land.


Some courts go even further and make it nearly impossible to acquire title by adverse possession.  They say that you must be adverse, have a claim of right, but that you must be non-hostile in the sense that you’re not thinking of the true owner.  In other words, you must believe you have a right to be where you are yet actually not have the right to be where you are.  This gets very close to a Catch-22 and makes it almost impossible to acquire land by adverse possession (AKA “title by larceny” among some of those who follow this rule).  You would probably need color of title.


The issue of what “claim of right” means cannot be resolved because it means different things in different jurisdictions.


If you believe that the purpose of adverse possession is to punish the lax owner, you will not care much about the mental state of the adverse possessor.  If, on the other hand, you’re out to reward a diligent adverse possessor, then you might start asking more or less whether the adverse possessor is a “good person”.


Braunstein dislikes subjective intent because it’s easily manipulated.  You can always just lie and no one would be the wiser.  Braunstein would set an objective standard of whether the possessor acted like the true owner.  But jurisdictions all over the place are split wildly over this issue.


Don’t let “claim of right” confuse you, because there’s basically no correct answer!


So there’s a lot of disagreement.  Ohio takes a pretty lenient view of adverse possession.


Estates and future interests


This is really tough!


Why do we study this?  For one thing, it’s on the bar.  Also, it actually comes up more than you think.  But we’re going to study a lot of things before we get to rules that have to do with the validity of various estates and possibilities of ownership in American law.


First, we’ll learn to classify interests.  Only after we’re classified them can we apply rules which determine their validity.  The rules depend on the classifications.  We will spend a lot of time classifying the different interests people have created or tried to create.  Then we’ll look at rules about marketability of land. 


You can’t just do anything you want with land in Anglo-American land.  There are only a certain number of estates that are recognized, and you must fit your estate into one of the categories, or it’s no good.


We have a one-page summary of estates and future interests.  It’s not going to be of much help yet, but hold onto it for later.


This topic fits in with the overarching concept of relativity of title.  We have seen this in eminent domain, capture, finders, and adverse possession.  Now we’ll deal with these same issues in contests between “co-owners”.  That word will mean something specific later.  But now all we mean is two or more persons owning an interest in a single property at the same time.


What we are talking about almost exclusively about intra-family transactions, and thus we’re mostly talking about gifts.


What are some ways to divide ownership?  We can divide land the way it gets divided on a map.  We could divide it into flat pieces and parts.  We could also divide the air, surface, and subsurface (vertically).  We can give the air rights to one person, the surface rights to another person, and the subsurface rights to a third person.


But what we’re going to talk about now is dividing up land over time.  The easiest example is the “non-freehold estate”: the landlord-tenant relationship.  The tenant has the property for a time, and then it will revert to the landlord at the end of that time.  A will have the property for a period of time, and then B will have the property after that.


Anglo-American law separates possession and ownership.  A possessor doesn’t necessarily own the whole “bundle of sticks”.  This can create some confusion!  The possessor of the property isn’t necessarily the owner of the property.


We divide interests in land based on whether they are possessory or non-possessory.  If it’s non-possessory, it’s a future interest.  “Future interest” means it’s non-possessory but could become possessory at a later time.  But a “future interest” is a current ownership.  For example, a landlord owns a building, but doesn’t have a possessory interest in the building.  That’s a future interest, but it’s not the ownership that’s delayed, it’s just the possession that’s delayed.




This is like learning a foreign language.  One problem is that some of the terminology is stuff you think you already know because it has a “lay” meaning and a different, more precise legal meaning.  So we’ll have new words to learn and also words we already know that we’ll have to relearn for this purpose.


Heir – Heirs are defined by statute.  Living people have no heirs.  We are not our parents’ heirs if our parents are still living.  The heirs are not identified until the decedent dies (that’s what a decedent is).  It’s true that if your parents die intestate and are survived by children, the children will be heirs.  But if, for example, the children die first, they won’t be heirs.  We won’t be able to determine who fits into these categories until the death of the relevant person.  You can’t be an heir unless you survive the decedent.


Issue – Who are these people?  It doesn’t mean children.  If you mean children, say “children”.  If you say issue, it means all direct lineal descendents.  It only goes down: children, grandchildren, great-grandchildren, continuing down theoretically forever.  If you believe in Adam and Eve, then we are all issue of Adam and Eve because we are direct lineal descendants.  Adopted children are treated the same as natural children for all purposes of the law.  But foster children or stepchildren are not descendants and thus not “issue”.  Stepchildren don’t inherit from their stepparents.




There are only four kinds of estates!


1.     The fee simple absolute – This is the most complete form of ownership recognized by American law.  It’s the complete bundle of sticks.

2.     The fee tail

3.     The fee simple defeasible – These are fees that are capable of being defeated.

4.     The life estate


These are all the freehold estates.  The non-freehold estate is the landlord-tenant relationship.  Those make up all the possessory estates.


All of these, except for the fee simple absolute, are associated with a future interest.  Everything always has to add up to 100%, and 100% equals a fee simple absolute.  If you can’t add up back to a fee simple absolute, you’ve missed something.


Pay special attention to the problems as we go through the material.


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